People v. Tomaske

Page 445

          Interlocutory Appeal from the District Court, Montrose County District Court Case No. 18CR178, Honorable Mary E. Deganhart, Judge

         Attorneys for Plaintiff-Appellant: Dan Hotsenpiller, District Attorney, Seventh Judicial District, Robert Davis, Deputy District Attorney, Montrose, Colorado

          Attorneys for Defendant-Appellee: Megan A. Ring, Public Defender, Kori Keil Zapletal, Deputy Public Defender, Montrose, Colorado

          En Banc

         OPINION

         BOATRIGHT, JUSTICE

         [¶1] Police officers entered Jeremiah Tomaske’s property without a warrant and chased him into his house; Tomaske responded by resisting and allegedly assaulting a police officer. We must determine whether

Page 446

the evidence regarding Tomaske’s actions was properly suppressed. The trial court found that the police officers’ initial entry onto the Tomaske property was a Fourth Amendment violation. The court further found that Tomaske’s alleged assault "occurred only as a result of the illegal action of law enforcement entering the curtilage^[1] and then the residence in violation of the Fourth Amendment." As a result, the court suppressed all evidence of the alleged assault.

         [¶2] Because Tomaske’s decision to resist was an independent act, we conclude that the evidence of Tomaske’s alleged criminal acts was sufficiently attenuated from the police misconduct. Therefore, the evidence of what transpired inside the house should not be suppressed. Accordingly, we reverse the trial court’s suppression order.

          I. Facts and Procedural History

         [¶3] Mary Tomaske called the Montrose Police to report that her car had been stolen by her son, Josh Tomaske, and that he was potentially still on the property. While three officers were en route to the Tomaske residence, they received a report that the car had been returned. As the officers arrived at the Tomaske residence, they confirmed that the car was parked in the driveway but decided to investigate further. In doing so, they entered the backyard and observed a man— Jeremiah Tomaske— coming out of the detached garage and heading toward the house. The officers asked Jeremiah if he was Josh, the Tomaske who had reportedly taken the car.^[2] Tomaske responded that he was not, and that Josh was his brother. Tomaske then told the officers that they had no right to be there, but the officers commanded Tomaske to come talk with them. Tomaske refused and continued to move toward the house. The officers pursued Tomaske through the backyard, and one officer followed him into the house and tackled him to the ground. Tomaske resisted and, in the course of the struggle, dislodged the officer’s baton from his duty belt. At this point, the other officers assisted in detaining Tomaske. Ultimately, Tomaske was taken into custody.

         [¶4] Tomaske was charged with second-degree assault on a peace officer, disarming a peace officer, attempted disarming of a peace officer, and obstructing a peace officer. Tomaske moved to suppress any statements from the officers about what transpired inside the house, arguing that the evidence stemmed from a warrantless entry and unlawful arrest.

         [¶5] The trial court suppressed the evidence. As an initial matter, the trial court determined that the officers’ entry into the backyard of the Tomaske home violated the Fourth Amendment. The court then reasoned that Tomaske’s actions inside the house were "a continuation of the illegal conduct of the officers." Therefore, the court determined that Tomaske’s conduct "was not sufficiently attenuated as to dissipate the taint of the ...